Pubdate: Wed, 08 May 2013
Source: East Bay Express (CA)
Copyright: 2013 East Bay Express
Contact: http://posting.eastbayexpress.com/ebx/SubmitLetter/Page
Website: http://www.eastbayexpress.com/
Details: http://www.mapinc.org/media/1131
Author: David Downs

WELCOME TO THE ERA OF 'WET' AND 'DRY' CITIES

The high court's decision to uphold pot club bans could result in an
extended period in which it will be impossible to buy medical cannabis
in some cities but not in others - unless the legislature intervenes.

The California Supreme Court upheld on Monday the right of cities and
counties to ban medical cannabis dispensaries in a unanimous decision
that promises to have major ramifications in the state. The ruling
means that cities like Walnut Creek and counties like Riverside can
continue to ban medical cannabis dispensaries in their areas - even
though medical cannabis remains legal statewide. It also lets cities
like Oakland, Berkeley, and San Francisco to continue to allow
regulated medical marijuana collectives operating in storefronts -
i.e., dispensaries.

But the decision likely will become a huge factor for cities and
counties that have not yet decided whether to allow or ban
dispensaries. The ruling also could impact the California Legislature,
where efforts are afoot to regulate the state's estimated $1.3 billion
medical cannabis industry.

Californians legalized medical marijuana for patients and caregivers
in 1996, and the state legalized collectives and cooperatives in 2003.
But the legislature left many policy details blank - and the courts
have filled them in one ruling at a time. The high court's latest
decision stems from the case of City of Riverside v. Inland Empire
Patients Health and Wellness Center. The dispensary opened in
Riverside in 2009, and then the city ordered it to close, citing a
nuisance ordinance. The club took the city to court. After two legal
losses, the club appealed to the state Supreme Court.

Dispensary attorney J. David Nick argued that a city's land-use powers
are not equivalent to the power to ban use. Cities have tried and
failed to ban mental-health hospitals, domestic violence shelters, and
laundromats from opening within town limits, he wrote in his brief.
And medical marijuana dispensaries should be treated no differently
because they are protected by state law, he argued.

But the high court ruled against the dispensary, stating that current
state law does not specifically prohibit bans. "The state statute does
not ... mandate that local governments authorize, allow, or
accommodate the existence of such facilities," the justices wrote.
"While some counties and cities might consider themselves well suited
to accommodating medical marijuana dispensaries, conditions in other
communities might lead to the reasonable decision that such facilities
within their borders, even if carefully sited, well managed, and
closely monitored, would present unacceptable local risks and burdens."

But the court's ruling also means that thousands of Californians who
need the herbal remedy will now likely have a more difficult time
accessing it as other cities and counties enact bans. There are
several hundred thousand medical marijuana patients in the state, and
there are about two hundred dispensary bans in place. The ruling
figures to factor heavily in Vallejo, which has neither regulated nor
banned dispensaries. "Hostile elected officials will feel emboldened
to adopt bans," said Kris Hermes, Oakland-based spokesperson for
Americans for Safe Access.

The Riverside verdict could also lead to closures of hundreds of clubs
in San Jose. Three out of four San Jose voters approved a local tax on
medical marijuana there, but the city council has tried to ban
dispensaries or regulate them out of existence anyway. Local operator
Dave Hodges said the ruling is "pretty bad." "San Jose is about to
take a really big hit," he said.

Los Angeles also has no regulations on clubs nor does it ban them
outright; voters will decide the fate of three measures to allow clubs
in LA and regulate them in an election this month. But prospects
appear to be bleak for all three measures, setting up another LA City
Council battle between the "ban" camp and those who favor regulation.
"The people that are pro-ban on the city council are going to take
this as a cue," said Don Duncan, head of Americans for Safe Access in
Los Angeles.

In San Diego, activist and organizer Cynara Velazquez said the ruling
would fuel a battle currently raging in the military town, in which
the mayor, who favors allowing medical cannabis dispensaries and
regulating them, is squaring off against the city attorney, who wants
to ban them completely. The San Diego County prosecutor working with
the Drug Enforcement Administration has reportedly closed every
dispensary in the city and county.

In the legislature, Duncan said activists will use the Riverside
ruling to argue for increased support for statewide regulations for
the industry. And the high court on Monday strongly indicated that
such regulations could pass muster. "Of course, nothing prevents
future efforts by the Legislature, or by the People, to adopt a
different approach," Justice Marvin Baxter concluded in the ruling.

But even with two regulation bills pending, passing a new law might
have to wait until next year, Duncan said. And it also likely won't
include a mandate that communities allow clubs. As a result, the
prospect of an extended period of "wet" and "dry" medical pot cities
and counties in California now seems very real.

Still, there was one clear winner in the high court's decision:
delivery dispensary services, which can easily cross city lines and
are hard to stamp out. There also were two other silver linings in the
court's decision: It reaffirmed the legality of dispensaries, meaning
anti-medical marijuana city attorneys can't point to federal law in
justifying bans; and it re-affirmed local control over such
businesses, meaning that local citizens can lobby to overturn existing
bans, fight proposed bans, as well as run referendums to stop bans and
install regulations.

"There is a huge job ahead for medical marijuana advocates in
California cities and counties that are borderline or hostile towards
dispensaries to push them in the direction of regulations, as opposed
to bans," Hermes said.
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MAP posted-by: Matt